Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

So a new article I have written was published today. It is entitled "Copyright Renewal, Copyright Restoration, and the Difficulty of Determining Copyright Status." Here is the abstract:

It has long been assumed that most of the works published from 1923 to 1964 in the US are currently in the public domain. Both non-profit and commercial digital libraries have dreamed of making this material available. Most programs have recognized as well that the restoration of US copyright in foreign works in 1996 has made it impossible for them to offer to the public the full text of most foreign works. What has been overlooked up to now is the difficulty that copyright restoration has created for anyone trying to determine if a work published in the United States is still protected by copyright. This paper discusses the impact that copyright restoration of foreign works has had on US copyright status investigations, and offers some new steps that users must follow in order to investigate the copyright status in the US of any work. It argues that copyright restoration has made it almost impossible to determine with certainty whether a book published in the United States after 1922 and before 1964 is in the public domain. Digital libraries that wish to offer books from this period do so at some risk.

One notable component of the public domain for recordings is the body
of recordings made by the companies of Thomas A. Edison between 1890
and 1929. Legal title to those recordings did pass to a successor
company; however, in the 1950s that company conveyed title to the U.S.
government as part of an agreement with the U.S. Parks Department.
Thus, Edison recordings can today be used without restriction.

The wonderful UC Santa Barbara (UCSB) cylinder preservation project web site repeats this assertion in its statement on copyright:

All Edison cylinders are presumed to be in the public domain as the assets of Edison Records were transferred to the National Park Service, a federal agency.

The National Park Service (NPS) itself doesn't go quite so far. It notes instead that it "does not presume that all Edison recordings are in the public domain," but nevertheless will make copies of the recordings for users according to the exceptions in Federal copyright law (even though these recordings are not protected by Federal law, but rather by state common law copyright).

So which is right? Are Edison recordings public domain, or are they still protected by state common law copyright? A little while ago I decided to investigate. Through the courtesy of the Edison National Historic Site, I was able to get a copy of the 1957 donation contract (actually of Bill of Sale) from McGraw-Edison Company (the successor to Edison's company) to the Park Service. The Bill of Sale states clearly that McGraw-Edison was transferring "property, goods and chattels," along with "all privileges and appurtenances thereunto belonging." Now deeds are far from being my area of expertise, but my understanding is that "privileges and appurtenances" is language that is used to accompany the transfer of physical property. Courts have ruled that a written transfer of copyright does not need to use the word copyright if the intention of the parties is clear, but it does not seem to me to be at all clear that copyright transfer was intended.

Copyright could also have been transferred in accordance with the "Pushman Perogative." The Pushman decision suggested that the physical transfer of the only copy of an unpublished work of art (and some would say manuscripts as well) also transferred copyright. In theory, it could apply to music (and I believe I remember reading that normal industry practice assumed that when master recordings were physically transferred, copyright accompanied the recordings).

So the key question here is whether in transferring physical property, did McGraw-Edison also transfer the copyright? Again, I don't see how one can conclude this. One of the key components of the Pushman decision was that the work of art (or the manuscript) was unique. The description on the Edison web site indicates that McGraw-Edison transferred published copies of the recordings. Later the NPS did get 9,700 disc master molds from the Henry Ford Museum. It might be possible to argue that McGraw-Edison transferred copyright in those masters to the Henry Ford Museum when it transferred title, and copyright was subsequently transferred to NPS with the discs. But unless the 10,000 cylinders that the NPS got from McGraw-Edison were master recordings, it would be hard to argue that their physical transfer to NPS also transferred copyright. And even if copyright was transferred with the physical recordings, it would not place the items in the public domain. Rather the government would now own the copyright in the recordings (since the government is allowed to own copyright created by non-government employees).

Of course, this whole issue is likely to be moot. McGraw-Edison never appears to have argued that it had a common-law copyright in the recordings. The company has since been bought by Cooper Industries, and I bet that Cooper has no idea that it may own the copyright in the recordings. The chance that Cooper would sue for common-law copyright infringement seems remote. And as June Besek has found out in her study for CLIR, the exact parameters of common-law copyright are also hard to fathom, so Cooper may not have a case for infringement.

So the assertion that the Edison recordings are in the public domain would appear to mistaken. The recordings are likely still protected by copyright - and the copyright status of the recordings doesn't seem to matter.

The lesson in all this is that we should not limit ourselves to digitizing only when things are clearly in the public domain. When UCSB, the Edison Site, the Library of Congress, and even commercial companies like Archeophone Records (which recently released a CD of indecent cylinder recordings from the 1890s) make old cylinder recordings available for listening or purchase, they may be in technical violation of copyright law. But they have not been sued, and the risk that they will be sued seem to be extremely low. All digitization involves a risk assessment - and in making this culturally important material widely available, these institutions have made the right choice.

[Corrections: on 2 July 2008, I changed the title of this blog entry from "wax cylinder recordings" to "Edison phonograph recordings." A commentator correctly noted that many different companies made wax cylinder recordings. This post is only about Edison recordings. And Edison made more than just wax cylinders, but also made cylinders of celluoid ("Blue Amberol cylinders") and disc records made of condensite ("Diamond Discs"). I have been told that given the fragility of wax cylinders and the durability of Blue Amberols and Diamond Discs, most Edison records that survive today are not wax cylinders.]